Re Baby A

[1999] NSWSC 787

CITATION:	Re Baby A [1999] NSWSC 787
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3145/99
HEARING DATE(S):	20/07/99
JUDGMENT DATE:	26 July 1999
PARTIES :	Director General of the Department of Community Services (P) Baby A (D1) JA (D2) AG (D3)
JUDGMENT OF:	Young J

COUNSEL :	P Singleton (Solicitor) (P) G Moore (D2 & 3)
SOLICITORS:	I V Knight (P) Ross A Clarke & Associates (D2 & 3)
CATCHWORDS:	Equity [325]- Injunctions- Statement by defendants that they do not intend to do act- Consequences grave if act done- Injunction granted.
CASES CITED:	Cowley v Byas (1877) 5 Ch D 944 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Glasgow Corporation v Muir [1943] AC 448 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 R v Transport Secretary; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603 Wellesley v Beaufort (1827) 2 Russ 1; 38 ER 236 Wellesley v Wellesley (1828) 2 Bligh NS 124; 4 ER 1078 Re X [1975] Fam 47
DECISION:	Injunction granted

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG, J

MONDAY 26 JULY 1999

3145/99 - RE BABY A

JUDGMENT

1    HIS HONOUR: The first defendant, baby A, was born on 20 July 1999. Her mother is the second defendant and her father the third defendant. The birth was actually after the proceedings were commenced. However, to avoid any doubt as to the applicability of parens patriae jurisdiction no orders were made in the proceedings until after the first defendant's birth.

2    The second defendant was born in Peru. She is now 30 years of age and has resided in Australia since November 1995. The third and second defendant married in March 1996.

3    The second defendant became HIV positive accidently while working in a hospital in Argentina.

4    The plaintiff became concerned about the first defendant before she was born. Medical evidence shows that the chances of the baby of an HIV positive mother being herself HIV positive is greatly increased if she is born vaginally and does not take anti HIV medication or is breast-fed.

5    After extensive discussion between the plaintiff's officers and the second and third defendants the latter eventually agreed that the baby have a caesarean birth and be given medication. Although the second and third defendants tell the court that the second defendant does not intend to breast-feed the first defendant, they declined to consent to an injunction.

6    Mr Moore who appeared for the second and third defendants put to the court that their word was sufficient and they do not want the sword of Damocles over their heads.

7    Mr Singleton, who appeared for the plaintiff, says an injunction must be granted in this case. He says the risk to the first defendant is so great that the ultimate protection should be given to her.

8    At the end of the hearing on 20 July I made orders up to today so that I could consider the matters of principle that arise. When I reserved I was particularly concerned by the passage in Kerr on Injunctions 6th ed (Sweet and Maxwell, London, 1927) p 411 that:

"The Court will not assume that a man means to violate his agreement."

9 On further research that proposition is too widely stated. It is certainly true that a party is not entitled to an injunction merely because when asked for an undertaking the defendant declined to give one; see Cowley (Lord) v Byas (1877) 5 Ch D 944.

10    The true position is put more precisely by Dr Spry in his Equitable Remedies 5th ed (LBC, Sydney, 1997) p 382 that:

"Statements by the defendant of his intention may be of importance, but it must be remembered that they are merely of evidentiary value, as tending to show a sufficient or an insufficient risk of injury, as the case may be, and that often other evidentiary matters are present that are of equal or greater weight."

11    In the instant case, I accept that the second and third defendants currently have the view which they state. However, it is of concern that statements have been made in the past as to the second and third defendants' reliability. Dr Danny Challis reports that he was endeavouring at a preliminary stage to convince the second defendant that she should have therapy and she and the third defendant agreed to go to the appropriate medical clinic "but they didn't, so they don't always do what they say they'll do."

12    Secondly, the matter of breast-feeding a child is a very emotive issue and the emotions of a new mother may lead her to do things which her head has told her she should not be doing.

13    Thirdly, it is very clear that the consequences for the first defendant should she be breast-fed are extremely serious indeed. The evidence is that unless all the precautions, including no direct breast-feeding, are carried out babies infected with HIV have a 20 percent chance of dying within the first year or two of life and proportions of such children develop brain damage such that normal development is not achieved.

14 In tort it is a settled rule that the graver the consequences the greater is the degree of care that must be taken. I paraphrase Charlesworth on Negligence 7th ed (Sweet and Maxwell, London, 1983) para 6-09. The statement is well supported by the authorities, in particular Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108, 126 and Glasgow Corporation v Muir [1943] AC 448, 456.

15 A similar rule applies in Equity when the court is assessing the evidence as to whether, in all the circumstances, there is such a risk of irreparable injury that the grant of an injunction is justified. The court always leans towards a fail-safe solution should it make a wrong decision in granting an injunction, and the risk of grievous injury is one of the matters that the court takes into account; see eg Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, 680 and R v Transport Secretary; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603, 683.

16    In my view, even giving full force and effect to the second and third defendants' statement, the risk of irreparable injury to the first defendant is such as would demand the grant of an injunction.

17    However, in any event, the present case falls within the exercise of the court's parens patriae jurisdiction.

18 Although in the circumstances no wardship order is called for, the powers of the court in a wardship matter are activated. That power is an extremely wide one. As Lord Eldon said in Wellesley v Beaufort (1827) 2 Russ 1, 18; 38 ER 236, 242:

"It has always been the principle of this Court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done."

19 On appeal the House of Lords reported as Wellesley v Wellesley (1828) 2 Bligh NS 124, 136; 4 ER 1078, 1083 the decision was affirmed, Lord Redesdale saying that the jurisdiction is very wide and extends as far as possible to protect the person of the child under the King's care.

20 These principles were applied recently by the English Court of Appeal in Re X [1975] Fam 47, particularly at pp 51-53. Re X shows that in such cases the protection of the child is to a considerable extent elevated above all other interests, though other interests are not completely disregarded.

21    If instead of applying the ordinary injunction principles one applied the principles in the wardship cases it would be even clearer that the injunction should be given.

22    Accordingly, I make permanently orders 1 and 2 in the amended summons of 20 July 1999. However, as I indicated during the oral hearing, I will reserve further consideration so that if at any stage the second and third defendants wish to move for these orders to be discharged, after due notice to the plaintiff, they will be at liberty to do so.

oOo

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